Tuesday, September 19, 2006

Praise the Lord, But Pay the PRO

In a September 14th opinion, Simpleville Music v. Mizell, 2006 WL 2642106, a district judge in Alabama addressed a rarely encountered part of the Copyright Act, Section 110(3). This provision exempts the public performance "of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly."

The suit was brought by ASCAP against the owner of radio stations operating without a license from ASCAP, known affectionately as a PRO ("Performing Rights Organization"). One of the defendant's arguments against liability was that he could broadcast some of the songs because the songs had been performed during church services. The court rejected the argument, rightly noting that the exemption applies only to performances that occur at the place of worship; it does not extend to broadcasts of those performances. The legislative history states that the exemption does "not extend to religious broadcasts or other transmissions to the public at large, even when the transmissions were sent from a place of worship." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 84 (1976).

The scope of the Section 110(3) exemption was the subject of debate during its drafting. The 1964 revision bills would have more broadly exempted the performance of nondramatic literary works and musical works in the course of religious services at a place of worship or other religious assembly.The 1965 revision bills further expanded the exemption to include dramatico‑musical works. At the same time, the Copyright Office noted concerns that the term “dramatico‑musical work” would encompass secular works if performed in the course of religious services. Since this was not Congress’s intention, the Office suggested that the term be amended to read “dramatico‑musical works of a religious nature.” This amendment was made in the House Committee on the Judiciary’s version of the bill reported on October 12, 1966. The amendment was explained as follows in the Committee’s report:

The purpose . . . is to exempt certain performances of sacred music that might be regarded as “dramatic” in nature, such as oratorios, cantatas, musical settings of the mass, choral services, and the like. The exemption is not intended to cover performances of secular operas, musical plays, motion pictures, and the like, even if they have an underlying religious or philosophical theme and take place “in the course of [religious] services.”

The phrase “in the course of services” is intended to exclude performances at places of worship that are for social, educational, fundraising, or other entertainment purposes, and, as the Alabama court held, broadcasts.

3 comments:

Zvi Rosen
said...

This is interesting...when the original public peformance bill for music was debated in congress, it was discussed whether public performance for "charitable or benevolent purposes" should be allowed. Rep. Cummings (the bill's sponsor) responded "If it is wrong to rob a man at all, is it not wrong to rob him through the operation of a church? For that is adding hypocrisy to theft." 54th Congress, 2nd Session, Cong. Rec at 88 (Dec. 10, 1896). They decided against this amendment, although of course in 1909 this was reversed.

Is not "of a religious nature" in the ear and mind of the beholder, though? Nowadays, there is a bit of a blurred line (at least in music) between "religious" and "secular." For instance, there are several famous musical artists who are self-professed Christians, but who intentionally do not market themselves in the "Christian industry," preferring rather to build careers in the "mainstream market." But often these marketing choices are as much a result of philosophical considerations as economic ones. Do their songs fall under the exemption?

A similarly blurry line exists almost perpetually between Christian music and country music, which share common historical roots. Songs which can be found in the "country" section of your favorite record shop are regularly performed in church services.

Then there are the situations in which a song which is clearly not intended to be religious is performed in church services. This sometimes takes place when a "mainstream" song with ambiguous lyrics, which can be liberally interpreted to be spiritually applicable to certain belief systems, is performed in church in an attempt (the success of which is quite debatable) by that church to be culturally relevant.

In sum, songs ranging from the overtly religious to the decidedly non-religious are regularly performed in church services, at least down here in the Bible Belt, and especially in the larger cities. How, if at all, does this reality jive with the statute? Or is it simply a case where lots of churches owe the PROs money (above and beyond their CCLI fees)?

I agree Section 110(3) can lead to some very iffy distinctions. In many cases, those problems can be avoided by relying instead on Section 110(4), which exempts performances that are without any purpose of direct or indirect commercial advantage and without dee to the performers. If profits are made or fees paid, the performance may fall into the realm contemplated by Representative Cummings (and thanks for the quote, Zvi).

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